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World Court Digest



I. Substantive International Law - First Part
4. SUBJECTS OF INTERNATIONAL LAW
4.3. International Organisations
4.3.4. "Implied Powers"

¤ Legality of the Use by a State
of Nuclear Weapons in Armed
Conflict (Request by WHO)
Advisory Opinion of 8 July 1996,
I.C.J. Reports 1996, p. 66

[pp. 78-79] 25. The Court need hardly point out that international organizations are subjects of international law which do not, unlike States, possess a general competence. International organizations are governed by the "principle of speciality", that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them. The Permanent Court of International Justice referred to this basic principle in the following terms:
"As the European Commission is not a State, but an international institution with a special purpose, it only has the functions bestowed upon it by the Definitive Statute with a view to the fulfilment of that purpose, but it has power to exercise these functions to their full extent, in so far as the Statute does not impose restrictions upon it." (Jurisdiction of the European Commission of the Danube, Advisory Opinion, P.C.I.J., Series B, No. 14, p. 64.)

The powers conferred on international organizations are normally the subject of an express statement in their constituent instruments. Nevertheless, the necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. It is generally accepted that international organizations can exercise such powers, known as "implied" powers. As far as the United Nations is concerned, the Court has expressed itself in the following terms in this respect:

"Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties. This principle of law was applied by the Permanent Court of International Justice to the International Labour Organization in its Advisory Opinion No. 13 of July 23rd, 1926 (Series B, No. 13, p. 18), and must be applied to the United Nations." (Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, pp. 182-183; cf. Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1954, p. 57.)

In the opinion of the Court, to ascribe to the WHO the competence to address the legality of the use of nuclear weapons - even in view of their health and environmental effects - would be tantamount to disregarding the principle of speciality; for such competence could not be deemed a necessary implication of the Constitution of the Organization in the light of the purposes assigned to it by its member States.

[pp. 81-82] 27. A consideration of the practice of the WHO bears out these conclusions. None of the reports and resolutions referred to in the Preamble to World Health Assembly resolution WHA46.40 is in the nature of a practice of the WHO in regard to the legality of the threat or use of nuclear weapons. The Report of the Director-General (doc. A46/30), referred to in the third paragraph of the Preamble, the aforementioned resolutions WHA34.38 and WHA36.28, as well as resolution WHA40.24, all of which are referred to in the fourth paragraph, as well as the above-mentioned report of the Management Group of 1987 to which reference is made in the fifth and seventh paragraphs, deal exclusively, in the case of the first, with the health and environmental effects of nuclear weapons, and in the case of the remainder, with the effects of nuclear weapons on health and health services. As regards resolutions WHA42.26 and WHA45.3 1. referred to in the sixth paragraph of the Preamble to resolution WHA46.40, the first concerns the WHO's contribution to international efforts towards sustainable development and the second deals with the effects on health of environmental degradation. None of these reports and resolutions deals with the legality of the use of nuclear weapons.
Resolution WHA46.40 itself, adopted, not without opposition as soon as the question of the legality of the use of nuclear weapons was raised at the WHO could not be taken to express or to amount on its own to a practice establishing an agreement between the members of the Organization to interpret its Constitution as empowering it to address the question of the legality of the use of nuclear weapons.

Nowhere else does the Court find any practice of this kind. In particular, such a practice cannot be inferred from isolated passages of certain resolutions of the World Health Assembly cited during the present proceedings, such as resolution WHAI5.5l on the role of the physician in the preservation and development of peace, resolution WHA22.58 concerning co-operation between the WHO and the United Nations in regard to chemical and bacteriological weapons and the effects of their possible use, and resolution WHA42.24 concerning the embargo placed on medical supplies for political reasons and restrictions on their movement. The Court has also noted that the WHO regularly takes account of various rules of international law in the exercise of its functions; that it participates in certain activities undertaken in the legal sphere at the international level - for example. for the purpose of drawing up an international code of practice on transboundary movements of radioactive waste; and that it participates in certain international conferences for the progressive development and codification of internatjional law. That the WHO, as a subject of international law, should be led to apply the rules of international law or concern itself with their development is in no way surprising; but it does not follow that it has received a mandate, beyond the terms of its Constitution, itself to address the legality or illegality of the use of weaponry in hostilities.

[p. 198 D.O.Koroma] I agree with the Court that because of the necessities of international life, it is accepted that international organizations can exercise implied powers, which are not in conflict with their constitution and are required to ensure their effectiveness. However, the implication that the WHO could not have intended to address "the legality of the use of nuclear weapons" even if it had relied on the exercise of such powers could only have been arrived at as a result of the interpretation given to the question by the Court which, as I have said, not only distorts the intention of the question to say the least, but cannot stand scrutiny when judged against the law or the facts. In the first place, as implied powers are those which may reasonably be deduced from the practice and functions of the organization in question, or, as the Court put it in the case concerning Reparation for Injuries Suffered in the Service of the United Nations,such powers are limited to those which, though not expressly provided for in the Statute of an organ "are conferred upon it by necessary implication as being essential to the performance of its duties" (I.C.J. Reports 1949, p. 182), the question that arises is whether the WHO, by asking the question posed, could have been regarded as exercising its implied powers, deduced from its practice and functions or essential to the performance of its duties. The response to the question would have to be sought in both the Constitution and the practice of the Organization.
As has already been stressed, the objective of the WHO is "the attainment by all peoples of the highest possible level of health", and in order to achieve that objective it is assigned certain functions which have already been mentioned. Furthermore, the WHO over the years, as has been demonstrated, has been concerned with the health effects of nuclear weapons.
It has also been noted and demonstrated that the use of nuclear weapons in armed conflict would result in a catastrophe which would precipitate an emergency situation in relation to health and the environment. Thus, even if the Organization, in asking the question, were to claim to be exercising implied powers, this, in my view, it would be entitled to do in order to seek legal guidance for the performance of its function or for the attainment of its objectives of promoting the health of all peoples, and in order to ascertain whether States by using nuclear weapons with consequent health and environmental effects would be in breach of their obligations under international law including the WHO Constitution. In other words, the WHO is, in my view, entitled to request the Court to determine whether the effects of a certain activity by a State would be in breach of that States obligations under international law including the WHO Constitution.

[p. 199 D.O. Koroma] In the Namibia case this Court emphasized that in interpreting an instrument the Court must take into consideration the changes which have occurred over the years as its interpretation cannot remain unaffected by the subsequent development of the law. The Court further emphasized,

"Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation" (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 31).

The reference to the Nationality Decrees case is not intended to suggest that the WHO is a State let alone a super-State, as the Court put it in the Reparation case, nor is this the intention with respect to the reference to the Namibia case either. The point sought to be made is that both Courts when interpreting relevant documents have taken into consideration developments which had taken place or had done so within the framework of the entire legal system prevailing at the time of the interpretation.
In other words, in determining the competence or scope of activities of the WHO in the context of its Constitution and with reference to the health and environmental effects of the use of nuclear weapons, account must be taken of the Organization's role and practice in situations similar to those involving the use of similar nuclear devices.